Justice, stop ‘revolving doors’ and the CSM electoral system: the news of the reform

Stop the revolving doors between the judiciary and politics and double offices, new rules for the election of togates to the CSM, to break the link with the currents and promote pluralism, more rigor in appointments and periodic evaluations of professionalism and a close out of office magistrates. These are the cornerstones of the reform of the Higher Council of the Judiciary and of the judiciary approved by the Council of Ministers, at the end of a sometimes complicated process, due to the differences between the majority parties, but which today saw the unanimous go-ahead of the government . A dossier on which the premier Mario Draghi and the minister of justice Marta Cartabia have imposed an acceleration, also in light of the new recall of the head of state, Sergio Mattarella, in his inauguration speech. And a reform that the Minister of Justice has claimed as “unavoidable” not only for the imminent deadline, in July, of the election of the new CSM but also “to stand alongside the judiciary in this process of renewal and recovery of trust and credibility” and that it was “due to the many magistrates who work silently, out of any exposure”. On the central point, the ban on returning to wear the toga after political positions, the reform provides that magistrates who have held elective positions of any type or government positions (national, regional or local) at the end of their mandate, can no longer return to perform any judicial function, but will be placed in administration roles. With a difference, introduced in the Cdm, that for technical assignments the prohibition is valid if the assignment lasts at least one year. Same prohibition, for three years, for magistrates who have stood as candidates in electoral competitions and have not been elected: the destination will be identified by the respective self-governing bodies. No also to double offices: the reform establishes that it is not possible to simultaneously exercise jurisdictional functions and hold elective and governmental, national and local positions. autonomous of Trento and Bolzano, the European Parliament, and for the positions of regional councilor and undersecretary, are not eligible in the region in which the judicial office in which they have served in the last three years is included, in whole or in part. Upon acceptance of a political candidacy, the magistrates must be placed on unpaid leave, which is mandatory for the entire period of the mandate, with the right to retain their posts and count the period of leave for retirement purposes only. The reform then draws up the new High Council of the Judiciary, which is once again made up of 30 members: 20 togates; 10 lay people. The electoral system is mixed: it is based on binominal constituencies, which elect two members of the CSM each, but provides for a proportional distribution of 5 seats at the national level. There are no lists for the candidates, but individual candidates. Each candidate presents himself freely in the binominal constituencies, for each of which there must be a minimum of 6 candidates, of which at least three of the less represented gender. If spontaneous applications do not arrive, it integrates with the draw to arrive at the minimum number of candidates foreseen; draw also foreseen to rebalance the candidacies of the less represented gender. It is a system that introduces elements of unpredictability, so that it is more difficult to make calculations and therefore to foresee divisions, especially for the places assigned with proportional representation. More transparency and different merit criteria for appointments to the top of the offices, to avoid the so-called ‘package’ appointments. Provided for the publication of the documents, the definition of the procedures based on the temporal order of vacancy of the places, the selection of a shortlist of candidates on the basis of the curricula followed by a mandatory hearing; the right to vote for advocacy in judicial councils; the identification of a minimum content of evaluation criteria, to also verify organizational skills. Seniority becomes a residual criterion, and the enhancement of equal opportunities is introduced, with equal merit. New rules also for the periodic professional assessments of judges, with the enhancement of the ‘holding of juridical provisions’, the articulation of the positive judgment relating to the ability to organize work in fair, good or excellent and not only positive or negative; prediction of the relevance of disciplinary conduct definitively ascertained. It is then introduced the incompatibility, for the effective members of the disciplinary section, to participate in the commissions that decide on managerial and semi-executive positions, office transfers and professionalism assessments. A squeeze is foreseen on out-of-office magistrates: this is a principle of delegation, for which the new reduced number of out-of-office magistrates will then be established with the implementing decrees, and it will be necessary to clearly determine which are the positions for which it is expected out of office and which are those for which the leave is expected. A magistrate cannot go out of office before 10 years of effective exercise of the judicial functions and if there is uncovering in the office to which he belongs, and a period of time must elapse between an out-of-office position and the other. The maximum limit has been set in 10 years. Finally, there are new ways of accessing the judiciary: the reform establishes accessibility to the competition directly after graduation, with the forfeiture of the obligation to attend specialization schools. Expected the enhancement of training internships and the office for the process; the attribution to the Higher School of the Judiciary of the organization of preparation courses for the competition in the judiciary for trainees and for those who have performed functions in the office for the trial, the provision of three written papers and the reduction of oral subjects.